Copyright - access and similarity
The creation and development of characters and storylines can be tricky, whether they are entirely fictional or based on fact, as two recent copyright cases have shown. In Mitchell v BBC, a question arose on subconscious copying of cartoon characters; while in Hodgson v Isaac, a dispute arose as to whether a factual autobiography had been copied by the writing of a screenplay. As these cases show, ‘similar’ does not necessarily mean ‘copied’, but it can shift the burden of proof.
Mitchell v BBC
Michael Mitchell, a freelance creative artist, devised a group of characters intended for an animated children’s TV show. He called them the Bounce Bunch. He sent his drawings and a brief synopsis of his idea to the BBC, hoping that it might commission the show. The BBC declined. Less than a year later, the BBC launched an animated children’s TV show called Kerwhizz. Mitchell’s daughter saw the show and apparently recognised the characters as the Bounce Bunch.
Mitchell cried foul. However, through the parties’ investigation of the case, it became apparent that the dispute would not necessarily be a simple case of a big corporation trying to exploit a designer’s creations for free, or a freelance designer overreaching what he had created. Essentially, it came down to who did what and when.
The history of Mitchell’s drawings began in October 2005 when he created his initial design of the first of the characters. He gradually developed the characters until they were substantially completed in June 2007, publishing drawings online along the way. He made his submission to the BBC shortly thereafter, in October 2007. The BBC explained that the initial Kerwhizz concept arose internally in December 2005, initial sketches were created in 2006, developed into full characters throughout the year and substantially completed by January 2007. The project was then presented internally in March 2007.
These facts presented Mitchell with his first significant hurdle. The BBC’s Kerwhizz characters were created no later than the first half of 2007. Mitchell submitted his Bounce Bunch characters to the BBC in October 2007, some months later. How could the BBC designers have copied Mitchell’s characters if they had not seen them? Mitchell relied on his earlier publication of the drawings online, and argued that, even if they were not intentionally copied, there must have been subconscious copying. The court set out the law on subconscious copying as stated in Francis Day & Hunter v Bron  1 Ch 587.
The court must assess: the access and degree of familiarity which the defendant had with the claimant’s work; the character and quality of the claimant’s work, and in particular how it might impress the mind and memory of the defendant; the objective similarity of the original work and alleged copy; the inherent possibility that it might all be a coincidence; the existence of other influences on the defendant; and the quality of the defendant’s own evidence as to the claimant’s work.
Having found that the Bounce Bunch characters were available online in 2007 (but no earlier), the court decided that the level of similarities between those characters and the Kerwhizz characters were sufficient to shift the onus of proof to the BBC, so that it was required to show that there was no copying. The BBC provided various evidence as to the stages of its designs and it became apparent that the key design work was carried out in 2006, with only the finishing touches added in early 2007.
Therefore, following the steps set out in Francis Day & Hunter, Mitchell’s case fell at the first hurdle. Nevertheless, even if that were not so, the court went on to say that, while there were some similarities, they were at such a high level of generality that they could be explained simply by reference to common influences in the same field. Furthermore, although Bounce Bunch drawings may have been available online, there was no substantive evidence that the BBC’s designers had actually seen them - for Mitchell to succeed would require a significant assumption of fact. His case, therefore, did not reach the level objectively required to make out a case of subconscious copying. Mitchell’s claim for infringement failed.
Hodgson v Isaac
Paul Hodgson wrote an autobiography, Flipper’s Side, charting the progress of his life following childhood meningitis and becoming wheelchair bound. He was introduced to Andrew Isaac, a screenwriter, with a view to developing a film which also portrayed his life. Isaac went on to write a script for a film called Down Amongst the Dead Men. As he developed that script, differences of opinion arose between the two men, and so Hodgson withdrew his permission for Isaac to adapt the book into a film. Isaac claimed that no permission was needed, since his script was not in fact an adaptation of the book, and so there could be no copyright infringement. It was essentially this point of debate which came before the court.
The court was quick to recognise the difficulties inherent in this kind of case. It was clear that the book and the film followed the same factual plot and so there was inevitably a great deal of similarity. But the mere existence of similarity does not necessarily mean there has been copying, since the two works are based on the same facts - the life of Hodgson.
The question to consider was whether Isaac’s script was based on his conversations with Hodgson, or whether it was in fact an adaptation of Flipper’s Side. It was a fine, but important, distinction.
The court set out the law on adaptations as stated in Baigent and Leigh v Random House  EWCA Civ 247 (the Da Vinci Code case). The court must ask itself: what are the similarities between the two works? What access did the alleged infringer have to the original work? Did the alleged infringer make some use of material derived from the original work, and was it a substantial part of the original? If the alleged infringer says he did not, then how else does he explain the similarities? The court also stressed that the references to a ‘substantial part’ was a qualitative, rather than quantitative, test, and that it depended on whether the relevant part was substantial to the original, not to the alleged infringement.
On the facts, the court found that the general plot of the two works was similar, although this could be explained by the fact that they were based on the same life history. However, there were a number of sections in the works which were very similar, not only in concept, but in detail. In some areas, there were large blocks of text which were almost identical. There were even some sections in the book which had been creatively embellished, such that they were something more than the facts of Hodgson’s life and bordering on fiction (the opening chapter/scene of football fans chanting; living in a council house with no staircase because the wood has been removed to be burnt; Hodgson’s father charging him 50p for a lift in the car; problems with access to a building for a job interview; and so on). The court did not accept Isaac’s claim that he had never read Flipper’s Side, and the details of the similarities were just too great for him to overcome by saying that they were mere coincidence.
Hodgson’s claim for infringement succeeded.
The interest in these cases is not only the facts and law which decided them, but the way in which they came to court. In each of these cases, having objectively assessed the facts, the end result seemed to be inevitable. It is perhaps worth noting that the unsuccessful party in each (Mitchell; Isaac) appeared in court without any legal representation. One might assume that this was a matter of costs for those parties, and one wonders if the cases could have been resolved sooner and at less cost for all.
Indeed, Isaac had been asking for someone independent to review his script and Hodgson’s book, and the court regretted the fact that it had taken two years for someone (the court) to do just that and for the case to be finally resolved.
However, perhaps the new regime at the Patents County Court, with reduced obligations of disclosure and limited cross examination, can help to achieve quicker and cheaper access to justice in appropriate cases. The court has already taken great strides to achieve this objective, and it is hoped that individuals and businesses will feel more able to seek, and afford, vital legal advice and assistance in the future.
Jim McDonnell, DLA Piper, Sheffield
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